Commentary Magazine


The Law as a Moral Teacher

Earlier this week, I spoke to a group of young professionals, most of whom are conservative. And one of the conversations I had was with a person who was asking me about the link between culture and politics, arguing—as others I know have—that culture is “upstream,” and therefore in many respects more important, than politics.

This question reminded me of a passage from the late Alexander Bickel’s book The Morality of Consent, which deals in part with the competing traditions of Locke-Rousseau and Edmund Burke in Western thought and in American constitutionalism and political process:

The unexamined life, said Socrates, is not worth living. Nor is it bearable. To acknowledge no values at all is to deny a difference between ourselves and other particles that tumble in space. The irreducible value, though not the exclusive one, is the idea of law. Law is more than just another opinion; not because it embodies all right values, or because the values it does embody tend from time to time to reflect those of a majority or plurality, but because it is the value of values. Law is the principal institution through which a society can assert its values.

That statement seems to me to be quite right, and a nice rejoinder to those who say—with what must be barely a moment’s reflection—that we cannot “legislate morality.” In fact, we have legislated/legislate morality all the time—from slavery and segregation, to abortion and same-sex marriage, to welfare and environmental laws, to crime and drug use, to immigration policy and the global AIDS initiative, to much else. Jerry Sandusky was convicted of 45 counts of child abuse because we decided to legislate morality. It’s even said by some, mostly on the left, that the federal budget is a “moral document.” The law is, in fact, the most comprehensive embodiment of what a free society believes. It tells the world, and each other, who we are and what we believe.

This is not to downplay the significance of culture, which is enormously important to a society. But culture is, in some respects, subconscious and pre-social. The law, by contrast, is something that is actively thought out. That doesn’t mean it’s always well thought out, of course. But laws are a self-governing society’s conscious, willful expression of a set of beliefs and convictions. And among other reasons, that is why politics and government are, for all the complaints we (rightly) might have about them, terribly important and, at their best, something of a high calling. That’s worth bearing in mind even, and maybe especially, during a particularly ferocious presidential election.